UNIONISM  AND  THE  COURTS 


yr,  - 


A PAPER  BY 

GEORGE  GORHAM  GROAT 

Ohio  Wesleyan  University 


% 

[From  the  Yale  Review , August,  1910.] 


Yale  Publishing  Association 

135  Elm  Street,  New  Haven,  Conn. 


UNIONISM  AND  THE  COURTS. 


CONTENTS. 


Difficult  situation  of  courts  called  upon  to  decide  cases  affecting  trade- 
unions,  p.  144  ; i,  laws  prohibiting  discrimination  against  trade  unionists, 
reasons  for  tendency  of  State  courts  to  declare  them  invalid,  p.  145  ; same 
tendency  shown  by  the  Supreme  Court  of  the  United  States,  p.  147  ; analy- 
sis of  dissenting  opinions  by  Justice  Bartlett,  p.  149  ; Justice  McKenna,  p.  150  ; 
and  Justice  Holmes,  p.  151  ; 2,  validity  of  contracts  for  the  closed  shop, 
analysis  of  decisions  condemning  and  sustaining  them,  p.  152  ; 3,  possible 
modifications  in  the  prevailing  view  of  the  courts  in  the  interest  of  real  free- 
dom of  contract,  p.  155;  in  the  case  of  public  service  corporations,  p.  157; 
in  the  case  of  “wholesale  employment,”  p.  157. 


NE  of  the  most  interesting  as  well  as  one  of  the  most 


important  developments  of  trade  union  policy  during 
the  past  few  years  has  been  the  increased  attention  paid  to  the 
non-union  man.  The  policy  itself  is,  of  course,  not  a new  one. 
The  man  outside  of  the  organization  has  always  been  in  a posi- 
tion to  command  the  attention  of  the  union  man.  Yet  this  atten- 
tion has  been  concentrated  and  heightened  into  anxiety  by  a 
very  positive  danger.  This  danger  is  that  the  “scab”  may 
become  a serious  obstacle  to  the  accomplishment  of  the  purposes 
of  the  union. 

Rivalry  with  an  employer  cannot  be  well  controlled  so  long 
as  the  employer  has  at  hand  a supply  of  men  who  can  step 
in  to  take  the  places  of  strikers.  Not  only  in  time  of  strike 
bint  practically  at  all  times  is  the  possible  supply  of  the  strike 
breakers  a menace  to  a militant  union.  The  antagonism  that 
naturally  exists  between  employers  and  employees  is  the  back- 
ground for  the  desire  on  the  part  of  each  to  gain  every  possible 
advantage  over  the  other,  in  the  realization  that  an  outbreak  may 
come  at  any  time. 

To  place  themselves  and  their  followers  at  an  advantage  at 
every  possible  point,  labor  leaders  have  insisted  upon  a very 
definite  policy  against  non-union  men.  They  have  used  legis- 


Unionism  and  the  Courts. 


i9io] 


145 


lation  where  it  could  be  secured  and  organized  strength  where 
it  was  advantageous. 

These  several  plans  have  an  interest  beyond  that  of  their  suc- 
cess or  failure,  or  even  beyond  their  effect  on  the  industries  that 
are  concerned.  They  have  led  to  litigation  and  thus  the  courts 
have  been  obliged  to  deal  with  the  situation.  The  result  of  this 
has  been  to  place  the  courts  in  a difficult  if  not  an  embarrassing 
position.  It  has  made  necessary  a decision  on  questions  of 
industrial  ethics  applicable  to  industrial  conditions  so  new  that 
there  has  not  yet  been  time  for  this  new  phase  of  ethics  to 
evolve.  It  has  been  necessary  for  the  judges,  therefore,  to 
express  themselves  with  caution.  It  is  with  the  attitude  of  the 
courts  toward  these  policies  that  we  are  now  particularly  con- 
cerned. 


The  effort  to  secure  legislative  aid  found  expression  in  several 
laws  passed  by  both  State  and  federal  legislatures.  These  laws 
were  alike  in  general  principle.  They  made  it  a misdemeanor 
for  an  employer  to  discharge  an  employee  because  he  was,  or 
was  about  to  become,  a member  of  a labor  union.  In  one 
instance  a law  was  passed  forbidding  an  employer  to  compel 
an  employee  to  agree  not  to  join  a labor  union  as  a condition 
of  employment.  Such  laws  were  passed  and  came  before  the 
courts  in  several  States,  the  opinions  being  important  ones  in 
Missouri,  (State  v.  Julow,  1895,  31  S.  W.,  781);  Illinois, 
(Gillespie  v.  People,  1900,  58  N.  E.,  1007) ; Wisconsin,  (State 
v.  Kreutzberg,  1902,  90  N.  W.,  1098);  New  York,  (People 
v.  Marcus,  1906,  77  N.  E.,  1073)  ; United  States,  (Adair  v. 
U.  S.,  1908,  208  U.  S.,  161). 

The  line  of  argument  in  these  several  opinions  is  so  similar 
that  it  will  not  be  necessary  to  the  understanding  of  them  that 
extracts  be  quoted  from  all.  All  of  the  opinions  except  that 
of  the  New  York  court  deal  with  the  law  to  prevent  the  discharge 
of  men  solely  because  they  belong  to  labor  unions. 

In  State  v.  Julow,  the  first  of  this  series  of  decisions,  the 
court  found  two  objections.  The  first  was  constitutional,  based 
on  the  guaranty  of  life,  liberty  and  property.  These  terms 
“are  representative  terms,  and  cover  every  right  to  which  a 
10 


Y 35861 


146 


Yale  Review. 


[Aug. 

member  of  the  body  politic  is  entitled  under  the  law.”  Neces- 
sary to  these  rights  are  “those  of  acquiring  property  by  labor, 
by  contract,  and  also  of  terminating  that  contract  at  pleasure, 
being  liable,  however,  civilly  for  any  unwarranted  termination.” 
“The  law  under  review  declares  that  to  be  a crime  which  consists 
alone  in  the  exercise  of  a constitutional  right,  to  wit,  that  of 
terminating  a contract, — one  of  the  essential  attributes  of  prop- 
erty, indeed,  property  itself,  under  preceding  definitions.”  The 
fact  charged  “is  not  a crime,  and  will  not  be  a crime  so  long 
as  constitutional  guaranties  and  constitutional  prohibitions  are 
respected  and  enforced.”  “We  deny  the  power  of  the  legislature 
to  do  this,  to  brand  as  an  offense  that  which  the  constitution 
designates  and  declares  to  be  a right,  and  therefore  an  innocent 
act.” 

The  second  objection  lies  in  the  fact  that  the  law  “does 
not  relate  to  persons  or  things  as  a class.”  It  is  therefore  a 
special  law,  in  that  a non-unionist  might  be  discharged  “with- 
out ceremony,  without  let  or  hindrance,”  at  the  desire  of  the 
employer,  while  a unionist  would  be  protected  by  the  law. 

By  far  the  most  elaborate  opinion  was  written  by  the  Wiscon- 
sin court.  In  this  opinion  the  same  grounds  of  objection  are 
urged, — the  conflict  between  the  law  and  the  constitutional  guar- 
anties. Implied  in  the  guaranties  of  the  constitution  is  freedom 
of  contract.  The  labor  contract  is  but  a special  form  and  sub- 
ject to  all  the  privileges  of  other  forms  of  contract.  The  opinion 
then  takes  up  another  line  of  objection  in  the  following  words : 

“Free  will  in  making  private  contracts,  and  even  in  greater  degree  in 
refusing  to  make  them,  is  one  of  the  most  important  and  sacred  of  the  indi- 
vidual rights  intended  to  be  protected.  That  the  present  act  curtails  it 
directly,  seriously,  and  prejudicially,  cannot  be  doubted.  The  success  in  life 
of  the  employer  depends  on  the  efficiency,  fidelity,  and  loyalty  of  his 
employees.  Without  enlarging  upon  or  debating  the  relative  advantages  or 
disadvantages  of  the  labor  union,  either  to  its  members  or  to  the  community 
at  large,  it  is  axiomatic  that  an  employer  cannot  have  undivided  fidelity, 
loyalty,  and  devotion  to  his  interests  from  an  employee  who  has  given  to  an 
association  right  to  control  his  conduct.  He  may  by  its  decisions  be  required 
to  limit  the  amount  of  his  daily  product.  He  may  be  restrained  from  teach- 
ing his  art  to  others.  He  may  be  forbidden  to  work  in  association  with  other 
men  whose  service  the  employer  desires.  He  may  not  be  at  liberty  to  work 
with  such  machines  or  upon  such  materials  or  products  as  the  employer  deems 
essential  to  his  success.  In  all  these  respects  he  may  be  disabled  from  the 


Unionism  and  the  Courts . 


H7 


I9I°] 

full  degree  of  usefulness  attributable  to  the  same  abilities  in  another  who  had 
not  yielded  up  to  an  association  any  right  to  restrain  his  freedom  of  will  and 
exertion  in  his  employer’s  behalf  according  to  the  latter’s  wishes.  Such  con- 
siderations an  employer  has  a right  to  deem  valid  reasons  for  preferring  not 
to  jeopardize  his  success  by  employing  members  of  organizations.  A man 
who  has  by  agreement  or  otherwise  shackled  any  of  his  faculties — even  his 
freedom  of  will — may  well  be  considered  less  useful  or  less  desirable  by  some 
employers  than  if  free  and  untrammeled.  Whether  the  workman  can  find  in 
his  membership  in  such  organizations  advantages  and  compensations  to  offset 
his  lessened  desirability  in  the  industrial  market  is  a question  each  must 
decide  for  himself.  His  right  to  freedom  in  so  doing  is  of  the  same  grade 
and  sacredness  as  that  of  the  employer  to  consent  or  refuse  to  employ  him 
according  to  the  decision  he  makes.  We  must  not  forget  that  our  govern- 
ment is  founded  on  the  idea  of  equality  of  all  individuals  before  the  law. 
Such  restraints  as  may  be  placed  on  one  may  be  placed  on  another.  If  the 
liberty  of  the  employer  to  contract  or  refuse  to  contract  may  be  denied,  so 
may  that  of  the  employee.  In  answering  the  question  now  before  us,  we  may 
not  forget  the  possibility  of  being  called  on  to  answer  whether  the  legislature 
may  make  a criminal  of  the  employee  who  quits,  for  example,  because  his 
employer  joins  a blacklisting  association;  because  nonunion  men  or  members 
of  some  other  union  are  employed,  or  nonunion  or  forbidden  machines  or 
materials  are  used ; because  of  an  obnoxious  foreman ; because  excessive 
hours  of  work  are  required;  because  compelled  to  trade  at  employer’s  store 
or  board  at  his  boarding  house ; or  because  of  any  other  fact  or  conduct  now 
considered  entirely  adequate  reason  for  refusing  or  leaving  a particular  ser- 
vice. It  must  not  be  forgotten,  if,  as  counsel  for  the  state  argues,  the  laborer 
is  too  weak  to  meet  the  employer  on  equal  terms  in  the  field  of  contract,  that 
he  will  be  far  more  subject  to  the  latter’s  control  and  oppression  in  the  field 
of  politics,  and  that  laws  of  the  above  character  will  surely  come,  if  within 
the  proper  province  of  the  legislature,  unless,  as  we  have  faith  to  believe,  the 
character  and  the  individuality  of  the  wage  earners  of  the  country  are  suffi- 
cient to  maintain  their  independence — both  contractual  and  political — in  the 
field  of  equal  rights  under  the  law,  and  of  full  liberty  to  each  to  sell  and  buy 
labor  to  and  from  whom  he  will.” 

“That  the  act  in  question  invades  the  liberty  of  the  employer  in  an  extreme 
degree,  and  in  a respect  entitled  to  be  held  sacred,  except  for  the  most  cogent 
and  urgent  countervailing  considerations,  we  have  pointed  out.  Hardly  any 
of  the  personal  civil  rights  is  higher  than  that  of  free  will  in  forming  and 
continuing  the  relation  of  master  and  servant.  If  that  may  be  denied  by 
law,  the  result  is  legalized  thralldom,  not  liberty, — certainly  not  to  the  labor- 
ing men  of  the  country.  This  aspect  of  the  subject  is  too  clear  to  warrant 
further  discussion.”  The  law  “has,  then,  taken  from  one  his  liberty  and 
property,  not  for  a public  purpose,  but  for  the  benefit  of  other  individuals, 
which  is  but  robbery  under  the  forms  of  law.” 

The  attitude  of  the  United  States  supreme  court  was  much 
the  same  as  that  of  the  State  courts.  The  case  came  up  to  the 
supreme  court  as  a test  case  between  two  conflicting  opinions 
by  lower  federal  courts. 


148 


Yale  Review . 


[Aug. 


United  States  v.  Adair  (152  Fed.  Rep.,  737)  had  been  decided 
in  favor  of  the  constitutionality  of  the  statute  by  the  district 
court  for  the  Eastern  District  of  Kentucky.  United  States  v. 
Scott  (148  Fed.  Rep.,  431),  the  year  before,  had  been  decided 
against  the  constitutionality  of  the  law  by  the  circuit  court  of  the 
Western  District  of  the  same  State.  The  decision  of  the  latter 
case  was  without  a comprehensive  opinion.  The  supreme  court 
accepted  its  principle,  however,  rather  than  that  of  U.  S.  v. 
Adair. 

The  opinion  is  a long  one,  as  it  deals  with  a question  that  is 
“admittedly  one  of  importance,”  and  one  that  “has  been  exam- 
ined with  care  and  deliberation.” 

“It  cannot  be,  we  repeat,  that  an  employer  is  under  any  legal  obligation, 
against  his  will,  to  retain  an  employee  in  his  personal  service  any  more  than 
an  employee  can  be  compelled,  against  his  will,  to  remain  in  the  personal 
service  of  another.  . . . Congress  could  not,  consistently  with  the  Fifth 
Amendment,  make  it  a crime  against  the  United  States  to  discharge  the 
employee  because  of  his  being  a member  of  a labor  organization.” 

“One  who  engages  in  the  service  of  an  interstate  carrier  will,  it  must  be 
assumed,  faithfully  perform  his  duty,  whether  he  be  a member  or  not  a mem- 
ber of  a labor  organization.  His  fitness  for  the  position  in  which  he  labors 
and  his  diligence  in  the  discharge  of  his  duties  cannot,  in  law  or  sound  reason, 
depend  in  any  degree  upon  his  being  or  not  being  a member  of  a labor  organi- 
zation. It  cannot  be  assumed  that  his  fitness  is  assured,  or  his  diligence 
increased,  by  such  membership,  or  that  he  is  less  fit  or  less  diligent  because 
of  his  not  being  a member  of  such  an  organization.  It  is  the  employee  as  a 
man,  and  not  as  a member  of  a labor  organization,  who  labors  in  the  service 
of  an  interstate  carrier.”  “Looking  alone  at  the  words  of  the  statute  for  the 
purpose  of  ascertaining  its  scope  and  effect,  and  of  determining  its  validity, 
we  hold  that  there  is  no  such  connection  between  interstate  commerce  and 
membership  in  a labor  organization  as  to  authorize  Congress  to  make  it  a 
crime  against  the  United  States  for  an  agent  of  an  interstate  carrier  to  dis- 
charge an  employee  because  of  such  membership  on  his  part.  If  such  a power 
exists  in  Congress  it  is  difficult  to  perceive  why  it  might  not,  by  absolute  regu- 
lation, require  interstate  carriers,  under  penalties,  to  employ,  in  the  conduct 
of  its  interstate  business,  only  members  of  labor  organizations,  or  only  those 
who  are  not  members  of  such  organizations, — a power  which  could  not  be 
recognized  as  existing  under  the  Constitution  of  the  United  States.” 

Concerning  the  law  forbidding  an  employer  to  require,  as  a 
condition  of  employment,  that  a workman  shall  agree  not  to 
join  a union  but  a word  need  be  added.  The  New  York  court 
(People  v.  Marcus)  based  its  opinion  upon  its  utterances  in 
former  cases  in  which  it  upheld  freedom  of  contract  in  relation 


I 

1910]  Unionism  and  the  Courts.  149 

to  the  purchase  and  sale  of  labor.  (National  Protective  Asso- 
ciation v.  Cumming  and  Jacobs  v.  Cohn.)  Its  conclusion  is 
that  “that  freedom  to  contract  which  entitles  an  employer  to 
make  by  agreement  his  place  of  business  wholly  within  the  con- 
trol of  a labor  union  entitles  him,  if  he  so  desires,  to  require  of 
his  employees  that  they  be  wholly  independent  of  any  labor 
union.” 

These  decisions  with  their  opinions  leave  no  doubt  as  to  what 
the  law  is,  so  far  as  constitutionality  is  concerned.  The  restric- 
tion which  such  legislation  seeks  to  place  upon  the  employer  in 
favor  of  the  workman  is  contrary  to  the  individual  liberty  of 
the  citizen  to  enjoy  his  property  rights.  This  centers  in  the 
right  to  contract  freely  with  any  one  who  is  willing  to  enter  into 
the  contract.  The  case  is  not  one  that  by  the  exercise  of  the 
police  power  may  be  brought  within  the  constitutional  field  of 
limitation  upon  the  right  to  contract.  There  is  no  reason  in 
public  policy  that  will  justify  such  legislation  as  a restriction 
upon  the  right  to  contract. 

The  prevalence  of  this  view  may  be  indicated  by  the  fact  that 
thirty-two  judges  have  heard  the  arguments  in  these  several 
cases,  and  all  but  three  have  held  to  the  opinion  that  such  laws 
are  in  violation  of  a constitutional  right.  Two  of  these  three 
are  judges  of  the  United  States  supreme  court.  Three  dissent- 
ing opinions  have  been  written,  and  the  very  fact  that  there  are 
but  three  makes  them  of  unusual  interest.  Further  interest  is 
attached  to  two  of  them  from  the  fact  that  they  were  written 
by  Mr.  Justice  Holmes  and  Mr.  Justice  McKenna.  x 

The  first  of  these  three  dissenting  opinions  was  written  by  Y 
Mr.  Justice  Bartlett  of  the  New  York  court  of  appeals,  in  the 
case  of  People  v.  Marcus.  Its  line  of  reasoning  is  shown  in  £he 
following  extract : 

“The  freedom  of  contract  should  be  untrammeled.  A person  desiring 
employment  ought  not  to  be  required  to  abstain  from  joining  any  labor 
organization,  nor  should  he  be  compelled  to  join  a labor  organization.  The 
statute  should  have  covered  both  cases.  I regard  this  legislation  as  a step  in 
the  right  direction,  although  it  was  evidently  drawn  in  the  interest  of  labor 
organizations  and  without  regard  to  securing  absolute  freedom  of  contract. 
The  employer  is  to  be  protected  and  the  employed  as  well.  I trust  the  day  is 
not  far  distant  when  to  every  working  man  will  be  open  all  the  avenues  of 


Yale  Review . 


[Aug. 


150 

employment,  whether  he  belongs  to  labor  unions  or  other  organizations,  or 
stands  alone  upon  his  individual  right  to  work  for  such  a wage  as  seems  to 
him  just  This  statute  is  not,  in  my  opinion,  unconstitutional,  but  is  to  be 
regarded  as  a step  in  the  direction  dictated  by  every  consideration  of  public 
policy.” 

Justices  McKenna  and  Holmes  wrote  their  dissenting  opinions 
on  the  same  case,  Adair  v.  U.  S.  Justice  McKenna  enters  into 
a careful  analysis  of  the  provisions  of  the  entire  law  of  which 
the  contested  section  was  a part  and  insists  that  the  section  must 
be  considered  with  reference  to  the  other  sections.  The  purpose 
of  the  statute  as  a whole  is  to  prevent  or  settle  disputes  between 
carriers  and  their  employees.  In  the  light  of  this  purpose  the 
section  in  question  gets  its  justification.  Liberty  is  not  entirely 
free  from  restraints,  even  under  the  Fifth  Amendment.  Some 
restrictions  are  justifiable.  The  question  then  is  whether  the 
section  in  dispute  “has  relation  to  the  purpose  which  induced  the 
act,  and  which  it  was  enacted  to  accomplish,  and  whether  such 
purpose  is  in  aid  of  interstate  commerce,  and  not  a mere  restric- 
tion upon  the  liberty  of  carriers  to  employ  whom  they  please 
or  to  have  business  relations  with  whom  they  please.”  The 
purpose  of  the  act  is  to  be  approved,  and  in  its  efforts  to  attain 
this  purpose  “the  congressional  judgment  of  means  should  not 
be  brought  under  a rigid  limitation.”  If  labor  associations 
are  to  be  commended,  Congress  certainly  may  recognize  their 
existence  and  their  power  “as  conditions  to  be  counted  with  in 
framing  its  legislation.”  The  justification  of  Congress  in  its 
efforts  to  accomplish  its  purpose  is  evident  in  the  events  of  1894. 
The  law  of  1888  “did  not  recognize  labor  associations  or 
distinguish  between  the  members  of  such  associations  and  the 
other  employees  of  carriers.  It  failed  in  its  purpose,  whether 
from  defect  in  its  provisions  or  other  cause,  we  may  only  con- 
jecture. At  any  rate  it  did  not  avert  the  strike  of  1894. 
Investigation  followed,  and,  as  a result  of  it,  the  act  of  1898 
was  finally  passed.  Presumably  its  provisions  and  remedy  were 
addressed  to  the  mischief  which  the  act  of  1888  failed  to  reach 
or  .avert.  It  was  the  judgment  of  Congress  that  the  scheme 
of  arbitration  might  be  helped  by  engaging  in  it  the  labor  asso- 
ciations.” The  final  conclusion  of  the  opinion  is  that  if  the 


1910]  Unionism  and  the  Courts.  151 

disputed  section  is  to  be  stricken  from  the  law,  the  law  is  made 
ineffective  in  accomplishing  its  purpose. 

The  opinion  of  Justice  Holmes  is  as  follows : 

“As  we  all  know,  there  are  special  labor  unions  of  men  engaged  in  the 
service  of  carriers.  These  unions  exercise  a direct  influence  upon  the  employ- 
ment of  labor  in  that  business,  upon  the  terms  of  such  employment,  and  upon 
the  business  itself.  Their  very  existence  is  directed  specifically  to  the  busi- 
ness, and  their  connection  with  it  is,  at  least,  as  intimate  and  important  as 
that  of  safety  couplers,  and,  I should  think,  as  the  liability  of  master  to  ser- 
vant,— matters  which,  it  is  admitted,  Congress  might  regulate,  so  far  as  they 
concern  commerce  among  the  States.  I suppose  that  it  hardly  would  be 
denied  that  some  of  the  relations  of  railroads  with  unions  of  railroad 
employees  are  closely  enough  connected  with  commerce  to  justify  legislation 
by  Congress.  If  so,  legislation  to  prevent  the  exclusion  of  such  unions  from 
employment  is  sufficiently  near. 

“The  ground  on  which  this  particular  law  is  held  bad  is  not  so  much  that 
it  deals  with  matters  remote  from  commerce  among  the  States,  as  that  it 
interferes  with  the  paramount  individual  rights  secured  by  the  Fifth  Amend- 
ment. The  section  is,  in  substance,  a very  limited  interference  with  freedom 
of  contract,  no  more.  It  does  not  require  the  carriers  to  employ  anyone.  It 
does  not  forbid  them  to  refuse  to  employ  anyone,  for  any  reason  they  deem 
good,  even  where  the  notion  of  a choice  of  persons  is  a fiction  and  wholesale 
employment  is  necessary  upon  general  principles  that  it  might  be  proper  to 
control.  The  section  simply  prohibits  the  more  powerful  party  to  exact 
certain  undertakings,  or  to  threaten  dismissal  or  unjustly  discriminate  on 
certain  grounds  against  those  already  employed.  I hardly  can  suppose  that 
the  grounds  on  which  a contract  lawfully  may  be  made  to  end  are  less  open 
to  regulation  than  other  terms.  So  I turn  to  the  general  question  whether  the 
employment  can  be  regulated  at  all.  I confess  that  I think  that  the  right  to 
make  contracts  at  will  that  has  been  derived  from  the  word  ‘liberty’  in  the 
Amendments  has  been  stretched  to  its  extreme  by  the  decisions ; but  they 
agree  that  sometimes  the  right  may  be  restrained.  Where  there  is,  or  gener- 
ally is  believed  to  be,  an  important  ground  of  public  policy  for  restraint,  the 
Constitution  does  not  forbid  it,  whether  this  court  agrees  or  disagrees  with 
the  policy  pursued.  It  cannot  be  doubted  that  to  prevent  strikes,  and,  so 
far  as  possible,  to  foster  its  scheme  of  arbitration,  might  be  deemed  by 
Congress  an  important  point  of  policy,  and  I think  it  impossible  to  say  that 
Congress  might  not  reasonably  think  that  the  provision  in  question  would 
help  a great  deal  to  carry  its  policy  along.  But  suppose  the  only  effect  really 
were  to  tend  to  bring  about  the  complete  unionizing  of  such  railroad  laborers 
as  Congress  can  deal  with,  I think  that  object  alone  would  justify  the  act.  I 
quite  agree  that  the  question  what  and  how  much  good  labor  unions  do,  is  one 
on  which  intelligent  people  may  differ;  I think  that  laboring  men  sometimes 
attribute  to  them  advantages,  as  many  attribute  to  combinations  of  capital 
disadvantages,  that  really  are  due  to  economic  conditions  of  a far  wider  and 
deeper  kind;  but  I could  not  pronounce  it  unwarranted  if  Congress  should 
decide  that  to  foster  a strong  union  was  for  the  best  interest,  not  only  of 
the  men,  but  of  the  railroads  and  the  country  at  large.” 


152 


Yale  Review . 


[Aug. 


While  these  two  dissenting  opinions  are  of  course  far  from 
determining  the  law,  they  nevertheless  indicate  a possible  devel- 
opment. It  must  necessarily  be  some  time  before  the  minority 
view  will  be  accepted  by  the  majority,  if,  indeed,  it  ever  is 
accepted. 

One  further  indication  of  variety  of  opinion  is  found  in  Berry 
v.  Donovan.  In  that  opinion  Mr.  Chief  Justice  Knowlton  made 
the  following  statement:  “We  have  long  had  a statute  for- 
bidding the  coercion  or  compulsion  by  any  person  of  any  other 
'person  into  a written  or  verbal  agreement  not  to  join  or 
become  a member  of  a labor  organization  as  a condition  of  his 
securing  employment  or  continuing  in  the  employment  of  such 
person.’  The  same  principle  would  justify  a prohibition  of  the 
coercion  or  compulsion  of  a person  into  a written  or  verbal 
agreement  to  join  such  an  organization  as  a condition  of  his 
securing  employment,  or  continuing  in  the  employment  of 
another  person.” 

Turning  away  from  legislation  as  a means  of  securing  protec- 
tion for  union  men,  we  find  the  leaders  availing  themselves  of 
the  right  upon  which  the  courts  in  the  above  cases  have  insisted : 
the  right  to  contract.  Its  application  is  in  the  contract  for 
the  union  or  closed  shop.  Much  may  be  said  both  for  and 
against  this  policy  on  economic  grounds.  Our  interest,  however, 
is  with  the  attitude  of  the  courts,  and  there  are  cases  in  which 
some  interesting  opinions  have  been  written  on  the  subject. 

Berry  v.  Donovan  (Mass.,  74  N.  E.,  603)  was  a case  in 
which  a discharged  employee  brought  suit  for  damages  on  the 
ground  that  his  discharge  had  been  caused  by  an  agreement 
between  his  employer  and  a union,  providing  that  the  employer 
would  not  retain  in  his  employ  any  one  that  was  objectionable 
to  the  members  of  the  union.  Damages  were  awarded  by  the 
court  on  the  ground  that  the  discharged  workman  had  been 
employed  nearly  four  years  and  was  discharged  as  a result  of  a 
complaint  under  the  agreement.  The  opinion  is  a long  one 
and  does  not  seem  so  strong  as  some  other  opinions  on  the  same 
subject.  It  takes  the  general  ground  that  "under  correct  rules 
of  law,  and  with  a proper  regard  for  the  rights  of  individuals, 


1910]  Unionism  and  the  Courts.  153 

labor  unions  cannot  be  permitted  to  drive  men  out  of  employ- 
ment because  they  choose  to  work  independently.”  The  opinion 
closes  with  the  following  guarded  statement:  “How  far  the 
principles  which  we  adopt  would  apply,  under  different  con- 
ceivable forms  of  contract,  to  an  interference  with  a workman, 
not  engaged,  but  seeking  employment,  or  to  different  methods 
of  boycotting,  we  have  no  occasion  in  this  case  to  decide.” 

In  Jacobs  v.  Cohen  (N.  Y.,  76  N.  E.,  5)  the  opinion  of  the 
court  was  accompanied  by  a vigorous  dissenting  opinion.  The 
contract  for  a closed  shop  was  one  that  included  many  details 
and  was  in  effect  a complete  unionizing  of  the  shop.  The  pre- 
vailing opinion  was  brief.  It  held  that  the  contract  was  not 
unlawful.  It  had  been  entered  into  voluntarily,  and  the  parties 
were  free  to  make  the  agreement.  “That,  incidentally,  it  might 
result  in  the  discharge  of  some  of  those  employed,  for  failure 
to  come  into  affiliation  with  their  fellow  workmen’s  organization, 
or  that  it  might  prevent  others  from  being  engaged  upon  the 
work,  is  neither  something  of  which  the  employers  may  com- 
plain, nor  something  with  which  public  policy  is  concerned.” 

The  dissenting  opinion,  written  by  Mr.  Justice  Vann,  is  inter- 
esting from  beginning  to  end.  As  a result  of  the  agreement, 
the  opinion  argues,  the  labor  department  was  under  the  control 
of  the  union.  Thus  both  employer  and  employed  abrogated 
their  own  rights.  “This  was  a form  of  slavery,  even  if  volun- 
tarily submitted  to;  for  whoever  controls  the  means  by  which 
a man  lives  controls  the  man  himself.  Both  the  proprietors 
and  the  workmen  seem  to  have  walked  under  the  yoke  of  the 
union  without  a protest.  * * * The  labor  of  the  employees 

belonged  to  themselves,  and  they  had  a right  to  sell  it  to  whom 
they  chose  and  on  such  conditions  as  were  mutually  satisfactory. 
The  business  belonged  to  the  defendants,  and  they  had  the  right 
to  employ  any  man  who  was  willing  to  work  for  them;  but 
by  this  agreement  an  outsider  intervened,  and  compelled  those 
who  owned  the  business  and  those  who  did  the  work  to  submit 
to  its  direction.  * * * The  manifest  purpose  of  the  con- 

tract was  to  prevent  competition  and  create  a monopoly  of 
labor.  A combination  of  capital,  or  labor,  or  as  in  this  case  of 
both,  to  prevent  the  free  pursuit  of  any  lawful  business,  trade, 


Yale  Review. 


154 


[Aug- 


or  occupation,  is  forbidden  both  by  statute  and  the  common 
law.” 

In  O’Brien  v.  People  (75  N.  E.,  108)  the  Illinois  supreme 
court  held  that  a strike  to  enforce  an  employer  to  sign  a closed 
shop  agreement  was  properly  enjoined.  The  union  agents  were 
seeking  to  obtain  the  signing  of  a contract  by  threats.  “A  con- 
tract under  duress  is  voidable,  and  duress  is  present  where  a 
party  is  constrained,  under  circumstances  which  deprive  him  of 
the  exercise  of  free  will.” 

Reynolds  v.  Davis  (84  N.  E.,  457)  is  another  Massachusetts 
case  and  one  of  very  recent  date  (1908).  The  employers  had 
been  operating  under  a verbal  understanding  which  was  in  effect 
a closed  shop  agreement.  They  decided  to  abandon  that  pol- 
icy and  in  furtherance  of  the  new  purpose  posted  a set  of  rules 
which  established  the  open  shop.  The  result  was  a strike  and 
an  appeal  to  the  court.  The  majority  opinion  of  the  court  was 
based  on  the  general  rule  that  in  Massachusetts  “the  legality 
of  a combination  not  to  work  for  an  employer,  that  is  to  say, 
of  a strike,  depends  (in  case  the  strikers  are  not  under  contract 
to  work  for  him)  upon  the  purpose  for  which  the  combination 
is  formed — the  purpose  for  which  the  employees  strike.”  That 
the  purpose  was  not  legally  justifiable  is  found  by  the  majority 
of  the  court  in  certain  rules  of  the  union.  These  rules  the 
union  sought  to  enforce  upon  the  employer.  “The  strike  in 
question  was  a combination  for  the  purpose  of  making  the 
trades  council,  composed  of  delegates  from  the  unions  of  which 
the  individual  defendants  are  members,  the  arbiter  of  all  ques- 
tions between  individual  employees  and  their  employers. 
* * * We  do  not  mean  to  say  that  a labor  union  cannot 

combine  to  support  a committee  to  take  up  individual  grievances 
in  behalf  of  the  several  members.  What  we  now  decide  to  be 
illegal  is  a combination  that  such  grievances  (that  is  to  say, 
grievances  between  an  individual  member  of  a union  and  his 
employer  which  are  not  common  to  the  union  members  as  a 
class)  shall  be  decided  by  the  employees  and  that  decision 
enforced  by  a strike  on  the  part  of  all.”  Chief  Justice  Knowl- 
ton  wrote  a dissenting  opinion,  stating  that  while  he  agreed 
with  the  final  disposition  of  the  case,  the  opinion  seemed  to 
rest  on  erroneous  grounds.  He  objected  to  the  opinion  in  that 


Unionism  and  the  Courts. 


155 


1910] 

it  “makes  the  decision  turn  upon  the  rules  and  by-laws”  of 
the  union.  His  opinion,  which  is  one  of  considerable  length, 
takes  up  the  question  of  the  rules  and  by-laws.  On  the  general 
proposition  that  “it  is  right  that  all  the  members  of  such  a 
union  should  unite  for  the  protection  of  the  interests  of  every 
individual  member”  it  follows  that,  “if  the  feeblest  of  its  mem- 
bers has  a just  grievance  as  an  employee  against  their  common 
employer,  it  is  proper  that  the  whole  combination  should  act 
together  to  obtain  redress  of  the  wrong.”  To  do  this  effect- 
ively, he  shows,  the  rule  to  which  the  majority  objects  is  reason- 
able and  lawful.  The  reasonableness  of  the  rule  is  pointed 
out  in  detail.  The  objection  on  which  he  bases  his  opinion  and 
his  conclusions  is  the  following:  “If  the  decision  were  puT" 
on  the  ground  that  the  strike  was  for  a closed  shop  in  the 
sense  that  the  shop  should  be  closed  arbitrarily  to  all  workmen 
not  members  of  the  union  * * * to  compel  all  workmen 

to  join  the  union  for  the  purpose  of  creating  a monopoly  in 
the  labor  market,  whereby  to  be  able  to  contend  successfully 
with  employers  whenever  a controversy  should  arise,  I should 
cheerfully  concur  in  it.  A strike  to  compel  a closed  shop, 
merely  to  accomplish  such  a purpose,  would  not  be  justifiable  on 
principles  of  competition,  either  as  against  nonunion  workmen 
or  as  against  the  employer,  but  would  be  unlawful.” 

While  the  unconstitutionality  of  laws  to  prevent  the  discharge 
of  men  because  of  their  membership  in  unions  cannot  be  doubted, 
yet  the  principles  underlying  the  dissenting  opinions  are  of 
interest.  They  suggest  the  question,  whether  in  spite  of  the 
almost  unanimous  agreement  there  are  not  signs  of  the  begin- 
ning of  a modification,  if  not  a change,  in  the  view.  The 
majority  opinion  is  based  on  the  long  established  and  widely 
accepted  understanding  of  freedom  of  contract.  This  is  inher- 
ited from  an  earlier  individualist  period.  Is  that  understanding- 
formed  in  that  earlier  period  to  pass  unmodified  into  our  modern 
view  of  socialized  industry?  The  extracts  above  quoted  reveal 
clearly  the  origin  of  the  view  held  by  the  majority  of  the 
judges.  Do  the  dissenting  opinions  show  the  entrance  of  a new 
view? 


Yale  Review . 


[Aug. 


156 

Mr.  Justice  Knowlton,  of  the  Massachusetts  court,  in  a pre- 
vailing opinion,  holds  that  this  law  is  as  unreasonable  as  would 
be  a law  which  would  prohibit  the  coercion  of  a person  into 
joining  a labor  organization  as  a condition  of  employment,  the 
two  alike  being  a violation  of  freedom  of  contract.  Mr.  Justice 
Bartlett,  of  the  New  York  court,  in  his  dissenting  opinion, 
at  the  outset  declares  positively  in  favor  of  freedom  of  contract. 
He  then  maintains  that  “a  person  desiring  employment  ought 
not  to  be  required  to  abstain  from  joining  any  labor  organiza- 
tion, nor  should  he  be  compelled  to  join  a labor  organization. 
The  statute  should  have  covered  both  cases.”  Yet  he  declares 
that  he  regards  the  legislation  “as  a step  in  the  right  direction” 
and  concludes  that  the  statute  is  not  unconstitutional  “but  is 
to  be  regarded  as  a step  in  the  direction  dictated  by  every  con- 
sideration of  public  policy.” 

Both  are  thus  insistent  upon  freedom  of  contract.  In  the 
one  case  it  is  to  be  preserved  after  the  old  method  of  non-inter- 
ference. Legislation  forbidding  an  employer  to  require  an 
employee  either  to  join  or  not  to  join  a union  is  an  infringement 
of  contractual  freedom.  This  is  the  older  view.  It  is  also  one 
that  considers  principally  the  position  of  the  employer  and  his 
right  to  contract  with  whomever  he  may  choose.  In  the  other 
case  freedom  of  contract  is  to  be  preserved,  but  by  a different 
^method, — that  of  legal  enactment.  Legislation  declaring  that 
an  employer  shall  not  discharge  an  employee  because  of  either 
membership  or  non-membership  in  a union  should  be  held  as 
no  infringement  upon  contractual  freedom  but  rather  as  a pro- 
tection to  such  freedom.  This  is  the  newer  view.  It  is  also 
one  that  considers  the  position  of  the  employee  and  his  right  to 
contract  with  an  employer  for  employment  without  regard  to  his 
relation  with  organized  labor.  The  difference  is  a significant 
one.  The  position  of  the  employee  becomes  one  equal  in  import- 
ance to  that  of  the  employer. 

These  are  the  two  views  as  revealed  in  the  prevailing  and  dis- 
senting opinions.  If  real  equality  before  the  law  and  real  free- 
dom of  contract  applied  equally  to  both  parties  lies  in  either 
one  of  these  two  views  and  not  in  the  other,  it  is  important 
that  it  be  known  which  is  the  one  to  be  chosen.  If  it  be  true 
that  actual  equality  lies  in  the  minority  view,  that  view  must 


1910]  Unionism  and  the  Courts . 157 

ultimately  express  itself  in  the  majority  opinions.  If  labor 
unions  are  to  continue  to  be  recognized  as  legal  in  themselves, 
it  is  not  easy  to  see  why  the  employer  should  be  left  undisturbed 
in  his  position  of  bargaining  advantage  to  dictate  whether  his 
employees  should  be  members  of  unions  or  not.  Clearly  when 
one  side  has  a decided  advantage  in  making  a bargain,  as  the 
employer  generally  has,  it  is  not  an  exaggeration  of  terms  to  use 
the  word  dictate. 

There  are  principles  in  Mr.  Justice  Holmes’s  dissenting  opin- 
ion that  are  also  significant.  First  is  the  fact  of  railroads  as 
common  carriers.  Legislatures  always  exercise  considerable 
control  over  public  service  corporations.  The  public  interest  is 
especially  concerned.  If  unions  are  inseparably  connected  with 
the  activity  of  these  public  service  corporations,  should  not  the 
government  recognize  it?  Safety  couplers,  liability  of  master 
to  servant,  are  simply  instances  of  a large  number  of  cases 
where  legislatures  now  interfere.  It  seems  to  the  mind  of  the 
justice  that  labor  unions  may  reasonably  be  included  in  the  list. 

But  the  second  point  is  of  greater  import.  Individual  rights 
as  secured  in  the  Fifth  Amendment  are  at  stake.  But  who  are 
the  individuals  concerned?  and  what  are  the  rights?  The 
individuals  are  employees  as  well  as  employers.  “The  section 
simply  prohibits  the  more  powerful  party  to  exact  certain  under- 
takings or  to  threaten  dismissal  or  unjustly  discriminate  on  cer- 
tain grounds  against  those  already  employed.”  The  notion  of 
a choice  of  persons,  or  of  individual  bargaining,  is  referred  to 
as  a “fiction,”  both  the  fact  and  the  necessity  in  actual  indus- 
try being  “wholesale  employment.”  “This  it  might  be  proper 
to  control.”  This  is  the  practical  view  of  employment  as  it 
exists.  It  throws  altogether  a new  light  upon  the  older  view 
of  individual  rights  in  freedom  of  contract.  What  are  the 
rights?  The  rights  of  these  individuals  are  not  passed  without 
comment.  The  right  to  make  contracts  at  will,  derived  from 
the  word  “liberty”  in  the  Amendments,  has,  in  the  opinion  of 
the  justice,  been  “stretched  to  its  extreme”  by  the  decisions. 
Even  these  decisions,  however,  agree  that  sometimes  the  right 
may  be  restrained.  The  necessity  arising  out  of  public  policy 
justifies  the  restriction  and  it  is  not  for  the  court  to  determine 
the  necessity. 


158 


Yale  Review. 


[Aug. 

This  is  the  newer  view  again  as  applied  to  unions  and  com- 
mon carriers.  If  it  is  to  have  any  influence,  it  will  be  in  the 
direction  of  bringing  the  majority  opinions  of  the  future  more 
fully  into  line  with  the  changed  conditions  of  industry. 

In  the  field  of  the  closed  shop  the  views  of  the  judges  have 
not  been  so  generally  on  one  side.  The  circumstances  in  which 
the  agreements  are  made  as  well  as  the  conditions  of  the  agree- 
ments themselves  enter  into  the  determination  of  the  opinion  of 
the  court.  Interference  with  implied  contracts  already  exist- 
ing and  coercion  of  the  employer  by  the  union  are  of  import- 
ance. Yet  when  these  are  cleared  away,  there  is  the  fact  of 
monopoly  which  may  easily  bring  the  case  within  the  anti-trust 
law  or  the  common  law.  Here  the  individual  view  of  the  judge 
would  be  important  and  one  might  well  expect  differences  of 
opinion.  This  being  so,  it  seems  that,  coercion  and  violation  of 
contract  aside,  a case  still  has  a chance  between  two  possible  out- 
comes. The  agreement  may  be  accepted  by  the  court  as  a vol- 
untary one,  where  the  parties  were  free  to  act,  as  in  the  New 
York  case.  Or  it  may  be  rejected,  as  in  the  Massachusetts  case. 
In  this  latter  case,  however,  the  reasoning  of  the  majority  opin- 
ion was  hardly  as  satisfactory  as  was  that  of  the  opinion  of 
Mr.  Chief  Justice  Knowlton.  There  it  is  clearly  brought  out 
that  the  agreement  and  the  means  adopted  to  secure  it  show  a 
purpose  of  “creating  a monopoly  in  the  labor  market.”  This  is 
against  public  policy  as  destructive  of  competition,  and  not  to 
be  permitted. 

So  far,  then,  as  these  two  points  of  policy  are  concerned 
the  unions  cannot  be  said  to  have  accomplished  much.  The 
efforts  to  secure  legislation  to  protect  them  in  their  membership 
have  failed.  Even  should  the  minority  opinion  ever  prevail  it 
would  be  to  the  advantage  of  the  laborer  as  a laborer  and  not 
as  a unionist. 

In  the  matter  of  the  closed  shop  his  success  lies  in  making 
the  agreements  in  such  a way  as  to  keep  free  from  the  courts. 
If  the  courts  are  appealed  to,  then  there  are  the  questions  of 
coercion  and  of  monopoly  to  be  dealt  with.  Here  the  outcome 
is  uncertain. 

George  Gorham  Groat. 

Ohio  Wesleyan  University. 


